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Derrik and I attended a Lyrasis webinar called “E-Resources Licensing- Overview and How-to for the Non-Lawyer” on Thursday, December 15. The goal of the webinar was to introduce the license agreements that frequently accompany electronic resources before purchase and explain what the responsibilities are for both the licensee and the licensor. Lyrasis instructor Russell Palmer had three objectives for the class stated in the slides:
- To understand general license terms.
- To understand permissions statements.
- To suggest revision/remedies to unfavorable license language.
Mr. Palmer opened the webinar by asking the group how often we had read the “Terms of Service” agreement that often accompanies the software we use in our daily lives, such as iTunes. Most of the class, including myself, indicated that we usually click through without reading the terms in full. Mr. Palmer stressed that we should read the terms every time: not only for familiarity, but also for understanding what we could expect as an end user. I know that I’ll be reading these agreements more frequently in the future!
We also learned that any license agreement signed by an institution can have the effect of restricting rights that are guaranteed by U.S. copyright law, superseding both Sections 107 and 108 of Chapter 17 of the U.S. Code (otherwise known as the “Fair Use” and “Reproduction” clauses). Mr. Palmer strongly suggested that users review these portions of a license agreement carefully, since they can easily be overlooked during negotiations.
A common license agreement has six parts:
- Terms and definitions: usually listed first, this section details the language used in the document.
- Authorized and non-authorized uses: what the end user can do with the information within a database, particularly with an emphasis on distribution and approved formats.
- Duties: the obligations for the licensee and licensor, including privacy and remote access.
- Jurisdiction: the state or country where the terms of the license are binding.
- Legal remedies: how matters such as indemnity (is the library responsible for any abuse by a user?) and omission (what does it mean for the licensee if something is not covered in the agreement?) are resolved.
- Modification/cancellation: the sections that are decided in negotiations that would tailor a license to the particular needs of a specific institution that are agreed upon by both parties.
While Mr. Palmer recommended that legal counsel should always review a license before its adoption, there has been an initiative by NISO to simplify the terms of a license agreement for specific purchases. Known as SERU (Shared Electronic Resource Understanding), it is a set of guidelines between a licensor and a licensee that would be agreed upon without excessive negotiation before a specific resource can be activated. Derrik explained further that SERU is designed to ideally streamline, not replace, a license agreement for individual titles. While it would not be ideal for a journal package like ScienceDirect, it would be perfect for acquiring access to a journal title purchased individually.
I found this workshop to be extremely informative as a novice to the process. I learned a lot more about the pitfalls for license agreements and why it is so important to secure their terms in advance. I was also glad that Derrik was in the room, because his insights were useful as I was increasing my own understanding. So if iTunes pushes out another update before the end of the year, I’ll know what to look for in the” Terms of Service”!